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EAW, duoble criminality check considers time of facts (Cass.

23 March 2009, Cassazione penale

If an EAW is issued and the facts were not criminally relevant at the time they have beeen committed in the executing state, EAW should be refused because of lack of double criminality.




(date of hearing 19/03/2009) 23/03/2009, no. 12724

Composed of Messrs:

Dr. MANNINO Saverio Felice - President

Dott. SERPICO Francesco - Councillor

Dott. MILO Nicola - Councillor

Dott. CORTESE Arturo - Councillor

Dott. COLLA Giorgio - Councillor

has pronounced the following


on the appeal brought by:


against the JUDGMENT of 17/02/2009 COURT of APPEALS of TURIN;

after hearing the report by Counselor Dr. MILO NICOLA;

having heard the conclusions of the Public Prosecutor Dr. CEDRANGOLO Oscar, who requested the annulment with reference of the contested sentence;

Hearing the defence attorney, Mr. Palumbo C., who concluded for the annulment of the contested sentence with referral to the Court of Appeal.

Course of the proceedings - Grounds for the decision

1- The Court of Appeal of Turin, by judgment of 17/2/2009, considering the recurrence of all the conditions provided for by Law No. 69 of 2005, ordered the surrender to the Romanian Judicial Authority of C. C., against whom European arrest warrant no. 1/3-4-2008 had been issued for the execution of irrevocable sentence no. 85 of 30 August 2007, by which the Court of Agnita had sentenced him to one year and four months' imprisonment for the offence of driving under the influence of alcohol (committed on (OMISSIS)) and had at the same time revoked the benefit of the suspended sentence of one year and six months' imprisonment imposed by the previous judgment No. 75 of 25 April 2005 of the same Court, thus setting the total sentence to be served at two years and ten months' imprisonment.

It should be pointed out that C. was, in relation to the present surrender proceedings, in a state of restriction as from 23/1/2009 as a result of the custodial precautionary measure adopted on the same date by the Territorial Court.

2. C. brought an appeal in cassation against the judgment of surrender, through his lawyer, and pleaded

(1) erroneous application of the criminal law (Law No. 69 of 2005, art. 7), considering that there was no proof of the principle of double criminality, with reference to the offence referred to in conviction No. 75 of 25/4/2005, which was not transmitted by the issuing Member State; that judgment No. 85 of 30 August 2007, duly recorded in the case-file, did indeed indicate the offence of driving without a licence as the subject-matter of the conviction of 25 April 2005, but that offence, in view of the time at which it was committed, constituted, for our legal system, a mere administrative offence, with the effect that surrender could not be ordered for the enforcement of the corresponding sentence (one year and six months' imprisonment)

2) erroneous application of the criminal law, with reference to Law No 69 of 2005, articles 6 and 16, since all the required documentation was not forwarded and, in particular, judgement No 75/2005, the report on the facts, the text of the applicable regulatory provisions, documentation that the Court of Appeal, before deciding on the request for surrender, should have acquired.

2a- An application was also made for revocation or replacement of the precautionary measure.

3- The appeal is well-founded in part and must be allowed within the limits set out below.

3a- The Court observes that, in the light of the documentation submitted, the legal requirements are met (dual criminality, limit of the sentence imposed) for the surrender of the complainant limited to the execution of the sentence imposed (one year and four months imprisonment), for the offence of driving under the influence of alcohol, by judgment No 85 of 30/8/2007 of the Court of Agnita.

All the information relating to this offence is contained in the aforementioned sentence, so that the failure to attach a report on the facts (Law No. 69 of 2005, art. 6, paragraph 4, lett. a) proves to be irrelevant.

Also the failure to attach the "text of the applicable legal provisions" (Law no. 69 of 2005, art. 6, paragraph 4, lett. b) cannot in itself constitute grounds for refusal of delivery, since such documentation is necessary only when particular interpretative problems arise whose solution requires the exact knowledge of the scope of the foreign rule, a situation that does not occur in the case at hand.

On the point examined, therefore, the contested judgment does not deserve any criticism and must be confirmed.

3b- On the other hand, the alleged breach of law is founded in relation to the ordered surrender for execution of the sentence imposed by judgment No 75 of 25/4/2005 of the Court of Agnita.

That judgment, which was not forwarded by the foreign judicial authority, relates, as is clear from the documents, to the conviction of the complainant for the "offence" of driving without a licence, logically committed prior to the same decision.

That being so, the principle of double criminality is lacking in relation to that conviction, given that, under the national legal system, driving without a licence constituted, with reference to the time when it was committed, a mere administrative infringement.

The judgment under appeal must therefore be set aside without referral in so far as it relates to the ordered surrender for execution of the sentence of one year and six months' imprisonment imposed by the above-mentioned judgment No 75/2005. 4- The clerk's office shall carry out the formalities pursuant to Article 22(5) of Law No 69/2005. 5- The request for revocation or substitution of the precautionary measure in place must be rejected, as it is functional to ensure the surrender of the requested person.

Annuls without referral the judgment under appeal limited to the execution of the sentence of one year and six months' imprisonment imposed by judgment Court Agnita 25/4/2005 no. 75.

Dismisses the remainder of the appeal and confirms the delivery of the sentence of one year and four months' imprisonment imposed by judgment Agnita Court No 85 of 30/8/2007.

Sends to the clerk's office for the fulfilment of the requirements of Law No. 69 of 2005, art. 22, paragraph 5.

Dismisses the application for interim relief.

Decided as follows in Rome on 19 March 2009.

Filed at the Court Registry on 23 March 2009